BVA9512792
DOCKET NO. 91-52 439 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to service connection for pes planus.
2. Entitlement to an increased evaluation for residuals of
frozen feet, currently rated as 10 percent disabling.
3. Entitlement to an increased evaluation for fragment wound
scar over the right tibia, currently rated as 10 percent
disabling.
4. Entitlement to a compensable evaluation for fragment
wound scar over the plantar surface of the left foot.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J.R. King, Associate Counsel
INTRODUCTION
The appellant served on active duty from July 1943 to August
1945.
This matter is on appeal from a July 1991 rating
determination of the Department of Veterans Affairs (VA)
Regional Office (RO) located in New York, New York, which
denied the appellant's claims of entitlement to increased
evaluations for residuals of frozen feet, a scar over the
right tibia and for a scar of the plantar surface of the
right foot.
This case was before the Board in July 1992 at which time it
was remanded for further evidentiary development.
Specifically, it was found that the appellant had raised the
issue of entitlement to service connection for pes planus as
secondary to the residuals of his service connected frozen
feet. Additionally, it was found that a May 1991 VA
examination was inadequate in that it failed to mention the
degree or nature of any damage to Muscle Group XII. Finally,
it was found that the examination did not make reference to a
scar over the left foot, an issue which had been certified
for appeal. Pursuant to the Board's remand, the appellant
underwent VA examinations in March 1993.
The case was again before the Board in April 1994. At this
time, it was found that the RO issued an April 1993
supplemental statement of the case which failed to refer to
the issue of entitlement to service connection for pes
planus. Noting that the prior Board remand held that this
issue was in effect inextricably intertwined with the
increased rating issues on appeal, the Board once again
remanded the case so that a supplemental statement of the
case could be issued which included the claim for pes planus.
Additionally, the Board had obtained an October 1993 medical
opinion from David D. Anderson, M.D., Medical Adviser to the
Board. The representative in this case, the Disabled
American Veterans, asserted that the case should be remanded
so that the appellant could have the opportunity to review,
rebut or comment on the content of the opinion. The Board
rejected this contention, but found that the RO should issue
a supplemental statement of the case so that the appellant
would have the opportunity to perfect an appeal as to the pes
planus issue.
Subsequent to the issuance of April 1994 remand, the United
States Court of Veterans Appeals (Court) held, in Austin v.
Brown, 6 Vet.App. 547 (1994), that the procedures then used
by the Board for requesting and using medical adviser's
opinions violated fair process principles and did not allow a
claimant an opportunity to respond. Thereafter, a September
1994 supplemental statement of the case was issued, which
indicated the procedural development of the claim. This
document also provided the appellant with the content and
findings of the October 1993 medical adviser's opinion. In
view of Austin, however, the Board finds that the medical
adviser's opinion may not be considered as a part of the
evidence in this claim. The appellant's statements and
assertions submitted into the record subsequent to the date
of this opinion, however, remain part of the appeal and
constitute evidence in relation to the claim for pes planus.
Subsequent correspondence from the appellant to his
Congressional Representative, the Honorable Gary L. Ackerman
reflects his contentions with respect to the claim for
service connection for pes planus. A May 1993 letter to the
VA Congressional Liaison's Office from Representative
Ackerman is of record which requests that he be informed as
to the status of the appellant's claim. Additionally, a
March 1995 informal hearing presentation reflects the
representatives contentions and discussion as to the pes
planus issue. In pertinent part, VA regulations provide: "A
Notice of Disagreement and/or a Substantive Appeal may be
filed by a claimant personally, or by his or her
representative." 38 C.F.R. § 20.301(a) (1994). Thus, these
statements by the appellant's representatives may reasonably
be construed as a timely filed notice of disagreement and
substantive appeal under the provisions of 38 C.F.R.
§§ 20.201 and 20.202 (1994), since these documents were filed
within one year of notification of the April 1994 Board
remand. Therefore, the Board construes the issues on appeal
as those delineated on the title page of this decision, and
will proceed accordingly.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant maintains that the RO erred in not granting
service connection for pes planus. He maintains that he did
not have pes planus on entry into active duty and that he
would not have been accepted for active duty or assigned duty
as an infantryman if he had had a flatfoot disability. He
avers that he was treated for flat feet after service by a
podiatrist, who is now deceased. The appellant also avers
that he has consistently been required to wear prosthetic
devices which correct his pes planus and allow for
comfortable ambulation. He maintains that his pes planus is
currently symptomatic and should be the basis for a favorable
decision. The appellant also argues, in the alternative,
that his pes planus is a residual of his service connected
frozen feet, and thus should be the basis of a grant of
service connection on a secondary basis to that disability.
The appellant also contends that the RO erred in failing to
grant increased evaluations for residuals of frozen feet and
for a fragment wound scar over the right tibia. He also
maintains that a compensable evaluation is in order for the
service connected fragment wound over the plantar aspect of
the left foot. He avers that his service connected fragment
wound scar over the right tibia and over the plantar aspect
of the left foot are currently symptomatic and should be the
basis of increased evaluations.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the appellant's claims
files. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the weight of the evidence is
against the appellant's claim of entitlement to service
connection for pes planus on the basis of incurrence or
aggravation, and that the appellant has not met his initial
burden of presenting a well grounded claim of entitlement to
service connection for pes planus on a secondary basis. The
evidence is also against the claims for increased evaluations
for residuals of frozen feet, and for fragment wound residual
scars over the right tibia and over the plantar aspect of the
right foot.
FINDINGS OF FACT
1. All evidence necessary for the equitable determination of
the appellant's claim has been obtained by the RO.
2. First degree pes planus was present on induction into
active duty and did not increase in severity in service.
3. Post service evidence of pes planus reflects no more than
the fact that the condition was symptomatic decades after
service, and does not reflect an increase in the level of
disability during the appellant's period of active service.
The appellant’s lay evidence on the symptomatic
manifestations of pes planus during and post service is not
credible as it is clearly and convincingly rebutted by the
post service VA examinations in 1946, 1947 and 1949.
4. There is no competent evidence of record showing any
causal relationship between pes planus and any service
connected disability.
5. The appellant's service-connected residuals of frostbite
of the feet are manifested by no more than mild symptoms.
6. The residual fragment scar over the right tibia is not
disfiguring, tender or painful and is not productive of
functional impairment of the right leg.
7. The residual fragment wound scar over the plantar surface
of the left foot is not disfiguring, tender or painful and is
not productive of functional impairment of the left foot.
CONCLUSIONS OF LAW
1. First degree pes planus was not incurred in or aggravated
by active military service 38 U.S.C.A. §§ 1110, 1111, 1153,
5107 (West 1991); 38 C.F.R. § 3.303, 3.306 (1994).
2. The appellant has not presented a well grounded claim of
entitlement to service connection for pes planus on a
secondary basis. 38 U.S.C.A. § 5107 (West 1991).
3. The schedular criteria for a rating in excess of 10
percent for residuals of frozen feet have not been met. 38
U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code
7122 (1994).
4. The schedular criteria for a rating in excess of 10
percent for fragment wound scar over the right tibia have not
been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.72,
4.73, Diagnostic Code 5312 (1994).
5. The schedular criteria for a compensable evaluation for
fragment wound scar over the plantar surface of the left foot
have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R.
§ 4.118, Diagnostic Codes 7804, 7805 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Considerations
Initially, the Board has found the appellant's claims, apart
from the claim for service connection for pes planus on a
secondary basis, to be well-grounded. This finding is based
on the evidentiary assertions of increased symptomatology of
the service connected disorders, and the evidentiary
assertions and clinical evidence in the claims folder with
regard to the claim for service connection on the basis of
incurrence or aggravation. King v. Brown, 5 Vet.App. 19
(1993); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The
Board further finds that appropriate development has been
conducted in accordance with 38 U.S.C.A. § 5107(a) (West
1991), and that there is no further action required to comply
with the duty to assist with respect to these issues. The
matter of whether the appellant has met his initial burden of
presenting a well-grounded claim for service connection for
pes planus on a secondary basis is addressed below.
II. Pertinent Laws and Regulations
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in line
of duty during a period of war, or for aggravation of a pre-
existing injury suffered or disease contracted in line of
duty during wartime service. 38 U.S.C.A. § 1110 (West 1991).
In general, a pre-existing injury or disease will be
considered to have been aggravated by active service, where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease. 38
U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and
unmistakable evidence (obvious or manifest) is required to
rebut the presumption of aggravation where the preservice
disability underwent an increase in severity in wartime
service. Aggravation may not be conceded where the
disability underwent no increase in severity during service
on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to and subsequent to
service. Consideration will be given to the circumstances,
conditions and hardships of service. 38 U.S.C.A. § 1153; 38
C.F.R. § 3.306(b).
Under the governing criteria, disability which is proximately
due to or the result of a service-connected disease or injury
shall be service-connected. 38 C.F.R. § 3.310(a) (1994).
Disability ratings represent the average impairment in
earning capacity resulting from diseases and injuries and
their residual conditions in civil occupations. Generally,
the degrees of disability specified are considered adequate
to compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability. In the evaluation of
service-connected disabilities the entire recorded history,
including the medical and industrial history, is considered
so that a report of rating examination, and the evidence as a
whole, may yield a current rating which accurately reflects
all elements of disability, including the effects on ordinary
activity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10,
4.41 (1994).
Disability of the musculoskeletal system is primarily the
inability to perform the normal working movements of the
body. In this respect, functional loss may be due to pain,
provided it is supported by adequate pathology and evidenced
by the visible behavior of the claimant undertaking the
motion. 38 C.F.R. § 4.40 (1993).
III. Factual Background
Service Medical Records
The evidence in this case includes the appellant's service
medical records, which show that he was found to have first
degree pes planus on induction examination of March 1943. In
December 1944, the appellant presented for treatment of
trench foot with blisters of both heels. It was noted that
he had had his shoes on for 2 days, without taking them off,
and that the appellant reported that his feet were wet and
cold for one week. On examination, blisters of both heels
were identified, as well as cyanosis. The appellant was
evacuated to the United States, after which he was admitted
to a military medical facility. Treatment records show the
condition was initially noted as severe, but subsequently
characterized as moderate.
Clinical records apparently dated in May 1945 indicate the
veteran was evacuated from his unit in Germany due to trench
foot and wounds, bilateral. On orthopedic evaluation, it was
noted that there were “SW’s” [“shrapnel” wounds] of the left
foot and right leg, with healed scars and no deformity.
Clinical records dated in June 1945 reflect that although the
appellant was found to have reached maximum hospital benefit
after six months of treatment, his feet remained symptomatic.
The examiner stated that the veteran still experienced great
discomfort on standing or walking. It was recommended that a
Medical Board be convened to facilitate a medical separation
from active duty. This was accomplished, and in August 1945,
a board report was issued, which found that the appellant was
mildly impaired for civilian life as a result of his service-
incurred trench foot. The extensive records pertaining to
treatment for trench foot reflect that the appellant’s feet
were described on a number of occasions. At no time was
there any mention of pes planus.
Post Service Clinical and Lay Evidence
The veteran report of discharge from service shows the award
of the Purple Heart Medal, and a date of a wound of July 25,
1944. The veteran filed an original claim for compensation
benefits in August 1945. He reported a wound of the left leg
in July 1944, but he made no mention of a pes planus
disorder. Based on the above noted records, the RO
established service connection and awarded a 100 percent
evaluation for trench foot and for scars of the right leg and
left foot by rating decision of August 1945. He was notified
that this award was for a limited period not to exceed 6
months, and subject to reexamination. Thereafter, the
appellant was examined by the VA in March 1946. At this
time, he reported that he had sustained a shrapnel wound of
the left foot on July 25, 1944, and a shrapnel wound of the
right leg on December 19, 1945. His current complaints were
swelling of both feet, tingling and pain. He made no mention
of pes planus, and the examiner specifically noted in section
25 of the examination report that pes planus was not present.
Examination disclosed that both feet were cold to the touch
and there was discoloration of all toes of both feet with
swelling of the toes and dorsal surfaces of the feet. The
diagnosis was bilateral trench foot. Based on these
findings, the RO established a 60 percent evaluation for
trenchfoot. The disability was rated as being analogous to
severe Raynaud's disease. This rating was decreased, in
April 1947, to 30 percent based on VA examination findings of
February 1947. The report of that examination again shows no
complaint or history of pes planus and again the examiner
expressly noted in section 25 of the report that pes planus
was not present.
The appellant was once again examined by the VA in September
1949. At this time, the appellant provided a history of
having acquired frozen feet in service. The examiner noted
that the appellant complained of occasional cold, numbness
and tingling of the feet. He indicated that he had suffered
from pain and swelling of the right great toe. On
examination, swelling and redness of an ingrown right great
toenail was identified. Additionally, the examiner found
that the appellant's dorsal pedis and posterior tibial pulses
were normal. The examiner explicitly noted that pes planus
was not present in section 25 of the report. Thereafter, the
RO assigned a 10 percent evaluation for the residuals of
frozen feet by rating determination of October 1949.
At a VA examination in October 1951, the complaints and
findings were similar to those noted in 1949. There was a
notation entered in the section of the report where the
history of the appellant’s trench foot disorder was recorded
that reads “Has flat feet.” On examination of the
musculoskeletal system, there was no mention of flat feet,
nor was the disorder diagnosed.
The next pertinent evidence of record is a March 1991
statement from Gary S. Kantrowitz, D.P.M., which reflects
that the appellant has been under his care since 1986 for a
variety of foot ailments. He stated that the appellant has
plantar fasciitis of the right foot, noting that the
appellant had a particularly severe bout in July 1990, which
resulted in extreme discomfort on ambulation.
The appellant underwent a VA examination in May 1991. At
this time he reported that he had had periods of intermittent
pain over the years. He indicated that he had noticed he had
painful, flat feet as soon as he was discharged from the
service. The examiner noted that the appellant had tightness
and pain of the feet with no discoloration. The appellant
reported numbness of the right foot. Pes planus was noted.
X-ray studies of the feet were interpreted as showing no bony
abnormalities. The pertinent diagnoses were history of
frostbitten feet and pes planus.
Subsequently, upon a finding that the appellant displayed
only mild complaints pertinent to the residuals of frozen
feet, the RO confirmed and continued the appellant's 10
percent evaluation for frozen feet in the currently appealed
rating determination of July 1991.
On his October 1991 VA Form 1-9, the veteran stated that he
did not have flat feet when he entered service, but that
during the Battle of the Bulge he had frozen feet “that
resulted to flat feet.” He indicated that he has had flat
feet since December 1944.
A June 1992 statement from Melvin J. Breite, M.D. is of
record which reflects that the appellant suffers from severe
foot problems that “seem to stem from a service connected”
pes planus disability.
A July 1992 statement from Gary S. Kantrowitz, D.P.M., is of
record, which is substantially the same as that submitted in
July 1991. Dr. Kantrowitz did indicate, however, that the
appellant does require orthotics for his feet in order to
walk, and that there is a possibility that the condition for
which he treats the appellant will return. An additional
statement of the same date reflects that the appellant's
plantar fascia was inflamed due to hypermobility of the foot
resulting in an overpronatory gait. He stated that
conservative care was administered including steroid
injections. He also indicated that the appellant required
biomechanically balanced orthotics which limit the pull of
the plantar fascia on the calcaneus, allowing the appellant
to ambulate in comfort.
Pursuant to the Board's July 1992 remand, the appellant
underwent an August 1992 VA examination of the feet. At this
time, the appearance, function, and form of the feet were
described as normal. His gait was said to be normal with no
limp. He was also noted to have flexed his arch very freely.
Pes planus with pronation was identified, with the right foot
being greater than the left. No other deformities were
noted. Specifically, it was stated that there were no
callosities, no hallux valgus, and no herniations, The
examiner noted that there were good pedalis and posterior
tibial and dorsalis pulses. He was also noted to be able to
stand on either foot unaided. The appellant could also
perform the heel and toe walk and squat to 110 degrees. The
diagnosis was bilateral pes planus with second degree
pronation on the right greater than left.
The appellant underwent an October 1992 VA examination for
diseases of the arteries and veins. He gave a history of
frozen feet sustained during World War II secondary to cold
exposure. The examiner noted that the appellant had good
bilateral volume of the dorsalis pedis and posterior pulses
and that there was no sensory deficit in the lower
extremities. The diagnosis was frozen feet World War II.
Pedal pulses demonstrated good volume without lower extremity
trophic changes. By contrast, the appellant underwent an
October 1992 VA examination of the feet in which callosities
were identified under the balls of both feet, with that on
the left being greater than on the right. The examiner noted
poor pulses in the dorsalis pedis. The diagnosis was 1st
degree pes planus with mild pronation.
In several statements to Congressional Representatives and to
the accredited representative in this case, the Disabled
American Veterans, the appellant expressed considerable
frustration at the VA's request that he be re-examined in
1993. January 1993 VA correspondence to the appellant is to
the effect that the clinical evidence amassed to that date
was inadequate to resolve the issues raised in the Board's
remand, namely, that of whether the appellant's pes planus
was the result of his service-connected residuals of frozen
feet.
The appellant underwent a VA examination in March 1993. At
this time, the appellant's posture and the appearance and
function of his feet were described as normal. Additionally,
there were no deformities of the feet noted. The appellant's
gait was found to be normal. The examiner noted that the
appellant skin was pale and cold with no abrasions and it was
noted that there were callosities under the head of the first
metatarsals and over the ball of both feet. Although it was
stated that x-ray studies had been taken 6 months prior to
the examination, it was also stated that there were no x-rays
on file and that the appellant refused to have more x-rays
taken. The diagnosis was pes planus with pronation and
bilateral mid-callosities.
The appellant also underwent a March 1993 VA examination for
diseases of the arteries and veins. He gave a history of
having to wear arch supports since 1944. Additionally, he
stated that his activity was limited, in part by “foot pain
to paresic.” On examination, motor strength of the lower
extremities was 5/5 and sensation was described as intact to
light touch and pin prick. Deep tendon reflexes were within
normal limits and the plantar decreased gait was said to be
normal. The examiner also noted good volume in the femoral,
popliteal and dorsalis pedis and posterior tibial pulses.
There were no trophic skin changes identified, and the
appellant's hair was said to be present. The diagnosis was
history of frozen feet with residual chronic feet pain, pedal
pulses good volume.
Evidence in the claims folder reflects that the March 1993 VA
examination of the feet was found by the RO to be inadequate
inasmuch as it failed to express an opinion as to whether the
appellant's pes planus had its onset during military service
or whether it developed as a consequence of the appellant's
service-connected disorders. Accordingly, the appellant was
afforded a VA examination in April 1993. At this time, it
was indicated that the appellant's claims folder was
available and that his history was “well-documented.” The
objective findings included pes planus. Dorsiflexion of the
foot was noted to be 0-10 degrees on the left, with no
dorsiflexion on the right. He was found to have 1st degree
pes planus on the left and 2nd degree pes planus on the right
with moderate pronation. The appellant was said to be able
to stand on his heel and toes, but was able to squat to only
50 degrees with difficulty.
Additional findings included that the appellant wears
orthotics in his shoes. The past history of plantar
fasciitis was noted, but the examiner stated that there was
no sign of this at the time of the examination. As to the
presence of secondary skin and vascular changes, callosities
were noted at the metatarsals. The appellant refused to
submit to x-rays studies of the feet. The diagnosis was pes
planus, bilateral, symptomatic. The examiner expressed an
opinion to the effect that since there was no evidence of the
existence of flat feet on entry into service, and appellant
claims he left service with pes planus, “it can only be
assumed that its onset was in service.” He concluded that
there is no reason to believe his pes planus developed as a
result of any of the service connected disabilities at issue.
A May 1993 letter from the appellant to his Congressional
representative is of record which shows that the appellant
stringently denies that he had pes planus prior to service.
He asserts that the fact that his military assignment was
that of foot soldier is evidence of the lack of a foot
deformity on entry into active duty. As noted in the
introduction of this decision, the Board remanded this case
in April 1994, ordering that the appellant be provided with a
supplemental statement of the case and an opportunity to
perfect an appeal as to the issue of service connection for
pes planus. Additionally, subsequent statements to the
appellant's congressional and accredited representative
reiterate his contentions in this regard..
As to the issue of an increased evaluation for a fragment
wound scars over the right tibia and plantar aspect of the
left foot, the appellant's service medical records show that
he sustained fragment wounds of the right leg and left foot.
The service medical records provide no details as to the
nature of the original wounds or treatment. In May 1945, the
resulting scars were described as healed with no deformity.
The August 1945 report of Physical Evaluation Board reflects
no finding pertinent to the appellant's fragment wounds of
the right tibia or left foot.
An August 1945 rating determination reflects that service
connection was established for a scar of the right leg and a
scar of the left foot. A 100 percent evaluation was assigned
for these disabilities along with trench foot, under the
limitations noted above.
Subsequently, the appellant was examined by the VA in March
1946. At this time, the veteran’s gait was described as
normal and the findings were that he had no limitation of
motion or other effects on function as a result of the
fragment wound of the right tibia. Similar findings were
elicited as to the residual fragment wound scar over the
plantar aspect of the left foot. Based on these findings,
the RO assigned a noncompensable evaluations for both the
shrapnel scar of the right tibia and for the shrapnel scar of
the left foot. The noncompensable evaluation for the
shrapnel wound of the left foot has been in effect until the
time of the current claim.
The appellant underwent a VA examination in February 1947.
At this time, he was noted to have complained about stiffness
of the right leg on prolonged ambulation or standing. There
were no complaints with regard to the left foot. The
examiner noted the veteran’s gait was normal. Clinical
findings included the presence of a 1˝ centimeter scar over
the right mid-tibial region of the leg. The scar was found
to be tender on motion. On the left foot was a 1/2
centimeter scar on the plantar area which was not tender. X-
ray studies of the right leg were interpreted as showing no
bone or soft tissue pathology. There were no opaque or
foreign bodies noted. Thereafter the RO assigned a 10
percent evaluation for a residual fragment wound scar of the
right leg in April 1947. This evaluation has been in effect
until the time of the current claim.
On VA examination in October 1951, the veteran’s gait was
described as normal.
A March 1991 statement from Melvin Breite, M.D., is of record
which reflects that he treats the appellant for a variety of
leg problems, including osteoarthritis of the knees and
chondrocalcinosis, which he notes is greater on the right
than on the left. He indicated that the appellant has pain
in his shins and that he has had right ankle problems. Dr.
Breite stated that the problems may stem from leg wounds
sustained in World War II and from the resulting gait
disturbances.
The appellant underwent a May 1991 VA examination. At this
time, he was found to have complained of numbness of the
right foot, with pain of the right foot, knee and leg. On
examination, the appellant's right knee was found to be
crepitant. The range of motion of the knee was recorded as
180 degrees, with flexion of 30 degrees. Pain was elicited
on forced flexion. The residual fragment wound scar of the
mid-tibia was noted.
The currently appealed rating decision confirmed and
continued the 10 percent evaluation for a residual fragment
wound scar of the right tibia.
The Board's July 1992 remand addressed this issue in noting
that the May 1991 VA examination failed to address the
presence or absence of damage to Muscle Group XII.
The appellant has submitted a medical article, Advances in
Functional Restoration, by Elizabeth Yew, M.D., that reviews
evidence pertaining to the relationship between increased
physical activity and aging and body function.
The appellant underwent a March 1993 VA examination of the
muscles. There was no tissue loss identified, nor was there
clinical evidence of penetration of the muscle. The examiner
noted no scar tissue formation, nor adhesion to any
underlying structure. No damage to tendons, bones, joints or
nerves was noted and the appellant was said to be able to
stand on either foot unaided on heels and toes. There was no
evidence of pain or muscle hernia. The diagnosis was no
clinically objective physical findings.
IV. Analysis
Entitlement to Service Connection for Pes Planus
The appellant's service medical records include a March 1943
entrance physical examination which reflects a clinical
finding of first degree pes planus. The appellant has
vigorously asserted throughout the course of his appeal that
he did not have pes planus on entry into active duty. VA law
provides that a claimant is entitled to a presumption of
soundness on entry, but that disorders, defects or
infirmities which are noted at the time of the entrance
examination are excluded from this presumption. 38 U.S.C.A.
§ 1111. As between the veterans’ recollections decades after
service and the entry noted on the examination form in 1943,
the Board must conclude that the later is entitled to by far
the greater probative weight since is was recorded
contemporaneous to service. As the finding of first degree
pes planus is a defect for the purpose of this statute,
service connection on a direct basis for pes planus will be
in order in this case only upon a showing that it was
aggravated during service.
The record in this case is conspicuous by the absence of any
indication of any increase in symptoms of the pre-existing
pes planus disorder in the service medical records or on
three consecutive VA examinations after service. In this
regard, the Board finds it highly significant that the
veteran was seen for an extended period for frozen feet,
reports were noted on several occasions concerning the status
of his feet, yet there was no incidental finding of any
manifestation of pes planus. Even were this service medical
evidence to be discounted or ignored, there were no fewer
than four occasions post service when the condition could or
should have been reflected by complaints, statements of
medical history or clinical findings, yet it was not. First,
the veteran made no reference to pes planus on his original
application for compensation benefits in August 1945.
Likewise, there were no recorded complaints or statements of
medical history regarding pes planus recorded on the VA
examinations in 1946, 1947 or 1949, and on these examinations
the physician specifically reported that pes planus was not
present. It was only on the VA examination in October 1951
that a comment was noted “has flat feet,” that in the context
in which it was recorded appears more in the nature of a
statement of history than a finding. An actual explicit
clinical finding of pes planus was not recorded. There was
no indication in this report that flat feet either began in
service, or that a pre-existing flat foot disorder increased
in severity in service.
The next references to pes planus only emerge in the record
in the 1990’s, with one physician reporting that he had seen
the veteran since 1986. None of the private or VA examiners
point to any clinical entry in the service medical records or
the post service VA examination reports through 1949 to
support an opinion that the appellant’s pes planus increased
in severity in service for the obvious reason that there are
no such entries. The appellant has adamantly maintained
variously that his flat feet began in December 1944 or that
he noted the condition immediately after service. These
recent, and somewhat conflicting, statements are not only
unsupported by the contemporaneous records, but are flatly
refuted by the service medical records and the VA examination
reports of 1946, 1947 and 1949.
The VA examiner in April 1993 expressed an opinion to the
effect that since there was “no evidence” of the existence of
flat feet on entry into service, and appellant claimed he
left service with pes planus, “it can only be assumed that
its onset was in service.” This opinion is of no probative
value for at least two reasons. First, the service medical
records show unmistakably that pes planus was noted at entry
into service. How the examiner missed this notation despite
his comment that the record was “well documented,” is not
shown, but the 1993 examiner’s evident oversight can not
alter the clearly recorded written record dated in 1943.
Second, the examiner points only to the veteran’s statements
of medical history as the source of information to indicate
that pes planus began in service. In a case presenting a
similar situation, the Court has held that where a physician
relies upon a history as related by an appellant, rather than
actual clinical records, and expresses an opinion as to the
etiology of a disorder based essentially upon the history
supplied by the claimant, the diagnosis can be no better than
the facts alleged by the appellant. Swann v. Brown, 5
Vet.App. 229, 233 (1993). For the reasons noted above, the
Board finds that the veteran’s current recollections do not
accurately reflect his medical history with regard to pes
planus. Since the factual assumptions underlying this
opinion are in error, the opinion carries no weight as to
whether pes planus was incurred or aggravated in service. In
reaching this conclusion the Board notes that there is
nothing in the record to suggest that the veteran is
insincere in his belief that pes planus began in service.
Rather, the fundamental question before the Board is whether
the veteran’s memories are accurate. The record in this case
overwhelmingly shows that they are not.
In the alternative, the veteran has advanced the opinion that
pes planus was caused by his service connected frozen feet.
The Court has held that a lay person can provide probative
eye-witness evidence of visible symptoms, however, a lay
person can not provide probative evidence as to matters which
require specialized medical knowledge acquired through
experience, training or education. Espiritu v. Derwinski, 2
Vet.App. 492 (1992) The Court has further held that "where
the determinative issue involves medical causation or a
medical diagnosis, competent medical evidence to the effect
that the claim is 'plausible' or 'possible' is required."
Grottveit v. Brown, 5 Vet.App. 93 (1993).
The record in this case provides no basis to conclude that
the appellant is other than a lay party. As such, his
opinions as to a matter of medical causation are without
probative value. Inasmuch as the most recent VA examination
concludes that there is no reason to believe that the
appellant's pes planus developed as a result of his service
connected residuals of frozen feet, and there is no other
evidence, save the appellant's assertions, that pes planus is
a residual of frozen feet, the Board is without a factual
basis upon which to predicate a favorable decision with
respect to service connection for pes planus as secondary to
his service connected frozen feet. Indeed, under the case
law from the Court, the Board must conclude that the veteran
has failed to meet his initial burden of presenting a well
grounded claim for service connection for pes planus on a
secondary basis.
In deciding this case, the Board has not relied on the above
noted October 1993 medical adviser's opinion as to the
etiology of the appellant's pes planus. Parenthetically, the
Board notes that it has been unable to independently locate
any medical literature that states pes planus and hallux
valgus are secondary to cold injury (frostbite).
Entitlement to an Increased Evaluation for Residuals of
Frozen Feet.
Residuals of frozen feet, with mild symptoms, bilateral or
unilateral, warrant a 10 percent rating. With persistent
moderate swelling, tenderness, redness, etc., bilateral, a 30
percent rating is in order. 38 C.F.R. Part 4, Diagnostic
Code 7122.
The Board has considered the body of evidence in this case
and finds that the weight of the evidence is against the
appellant's claim of entitlement to an increased evaluation
for residuals of frozen feet. The clinical evidence tends to
support a finding that the appellant's service-connected
disabilities do not currently consist of more than minimal
impairment of the affected areas. The Board has considered
the appellant's statements with respect to the symptomatology
he experiences as a result of his service connected
disability, but finds that by far the greater amount of the
clinical evidence pertains to symptoms attributable to pes
planus as opposed to residuals of frozen feet. While the
veteran is competent to describe symptoms, he is not
competent to provide an opinion as to the medical cause of
those symptoms. Grottveit.
Specifically assessing the severity of the residuals of
frozen feet, the evidence includes findings of pale, cold
skin described by VA examiners. While these findings are
consistent with the diagnosis of history of frozen feet, the
examiners have also generally found the appellant has good
pedal pulses. Additionally, the April 1993 VA examination of
the feet failed to yield findings which were pertinent to any
residuals of frozen feet. In evaluating the evidence it is
noted that the evaluation for mild symptoms under the
appropriate code is 10 percent. With no evidence in the
record showing continued persistent swelling, tenderness or
redness due to residuals of frozen feet, the next highest
rating, that of 30 percent, is not in order in this case.
Accordingly, the claim for an evaluation in excess of 10
percent for the residuals of frozen feet is denied.
Entitlement to an Increased Evaluation for Fragment Wound
Scar Over the Right Tibia.
Diagnostic Code 5312 provides for the evaluation of injuries
of the anterior muscles of the leg. Where the injury is
slight, a noncompensable evaluation is provided. Where the
injury is moderate a 10 percent evaluation is provided.
Where the injury is moderately severe, a 20 percent
evaluation is provided. Where the injury is severe, a 30
percent evaluation is provided. 38 C.F.R. § 4.73, Diagnostic
Code 5312 (1994).
In reviewing the evidence of record in this matter, the Board
emphasizes that neither the service medical records nor the
post service VA examinations from 1947 to 1951 indicate any
injury to the muscle, nerves or bone as a result of this
fragment wound of the right tibial region of the leg.
Moreover, the most recent VA examination confirmed this. As
such, there is no basis for an evaluation in excess of that
currently assigned under the schedular criteria. According
to the March 1993 VA examination, no clinically objective
physical findings were found pertaining to residual
disability from the old shell fragment wound.
Based on the evidence of record, the Board finds that an
evaluation in excess of 10 percent for residuals of the right
tibial shell fragment wound is not warranted. Under the
schedular criteria, shell fragment wounds are rated according
to the functional damage they have caused to the particular
bone, muscle and/or nerves. See 38 C.F.R. § 4.56, Part 4,
Code 5303. A slight disability of the affected leg muscle as
a result of a fragment wound or other trauma warrants a
noncompensable rating, and is characterized by a simple wound
of the muscle without debridement, infection or effects of
laceration, shown by service department records indicating a
wound of slight severity or relatively brief treatment and
return to duty; healing with good functional results; and no
consistent complaint of the symptoms of muscle injury or
painful residuals. 38 C.F.R. § 4.56(a), Part 4, Code 5303.
A moderate disability of muscles warrants a 20 percent
evaluation and is characterized by a through-and-through or
deep penetrating wound, shown to have required
hospitalization for treatment of the wound and symptoms of
fatigue or fatigue-pain after moderate use, affecting the
particular functions controlled by the injured muscles. 38
C.F.R. § 4.56(b), Part 4, Code 5303. The Board notes that
the appellant's primary reason for treatment prior to
separation from active duty was for the residuals of frozen
feet. Moreover, the appellant has expressed no current
contention that the service-connected fragment wound scar
over the right tibia is symptomatic or that it limits the
function or mobility of his leg in any way. Without clinical
or testimonial evidence showing that the service-connected
scar over the right tibia is of greater severity than it was
at the time the 10 percent evaluation was assigned, the Board
is without a basis upon which to assign a higher evaluation.
Accordingly, the claim for entitlement to an evaluation in
excess of 10 percent for a residual fragment wound scar over
the right tibia is denied.
Entitlement to a Compensable Evaluation for Fragment Wound
Scar Over the Plantar Surface of the Left Foot.
Significant amounts of clinical evidence are of record
documenting foot pathology related to pes planus.
Additionally, the appellant has been evaluated in relation to
his service connected residuals of frozen feet. This
clinical evidence consistently notes the presence of the scar
over the plantar aspect of the left foot. It is also
consistently stated that the scar is asymptomatic and does
not produce impairment of the function or mobility of the
foot or ankle.
The appellant underwent a VA examination in May 1991. At
this time, there were no significant findings elicited with
respect to the residual fragment wound scar of the left foot.
Subsequent clinical examinations are silent for findings
pertaining to the left foot scar, except for the April 1993
VA examination, which found that the scar was non-tender.
Based on a review of all of the evidence of record, the Board
finds that the fragment wound residuals of the appellant's
left foot are not productive of even minimal functional
impairment under the diagnostic codes outlined above, due to
the lack of any clinical assessment demonstrating either
limitation of motion of the left ankle or tenderness or pain
of the scar on objective demonstration.
The Board has considered the provisions of 38 C.F.R. §
3.321(b)(1) regarding the assignment of extra-schedular
evaluations. The clinical record, as discussed above, fails
to reveal a level of pathology sufficient to support a grant
in excess of the schedular standards. Furthermore, without a
showing of tenderness, pain, limited range of motion, or
other pathology, the Board finds that 38 C.F.R. § 3.321(b)(1)
is inapplicable to the case before the Board because the left
foot disability picture is not exceptional or unusual, with
such related factors as marked interference with employment
or frequent periods of hospitalization, so as render
impractical the application of the regular schedular
standards.
The Board has noted the March 1991 statement from Dr. Breite,
M.D., indicating the presence of leg problems including
osteoarthritis of the knees and chondroclacinosis. Dr.
Breite commented that the problems “may stem” from leg wounds
in World War II and “gait disturbances due to them.” The
Board points out that the actual clinical records fail to
show any gait disturbance due to the service connected
disabilities, as opposed to pes planus. Dr. Breite opinion
thus falls in the category of opinions based upon history
supplied by the appellant, and the Board finds no basis for
further action on this matter. Swann. Further, to the
extent that Dr. Breite’s opinion is couched in the language
akin to “may or may not,” it is speculative and would not be
sufficient to create a well grounded claim. Tirpak v.
Derwinski, 2 Vet.App. 609 (1992).
V. Conclusion
The Board has considered the provisions of 38 C.F.R. § 4.40
(1994), which provides, in essence, that functional loss may
be due to pain which is supported by adequate pathology and
evidenced by the visible behavior of the claimant undertaking
the motion. In a similar fashion, the Board has considered
38 C.F.R. § 4.45 (1994), which directs that the "factors of
disability" affecting the musculoskeletal system include pain
on movement and weakened movement. The overall degree of
functional impairment, produced by any discomfort of the feet
or right leg however, is well within the range contemplated
by the currently assigned evaluations. The objective
evidence in this case does not show more than minimal
disability from any of the disabilities under review here.
As there is no approximate balance of positive or negative
evidence with regard to any issue on appeal, the benefit of
the doubt doctrine is not for application.
ORDER
The claim for service connection for pes planus on the basis
of incurrence or aggravation is denied. The claim for
service connection for pes planus on the basis of secondary
service connection is dismissed.
The claim of entitlement to an increased evaluation for
residuals of frozen feet in denied.
The claim of entitlement to an increased evaluation for a
residual fragment wound scar over the right tibia is denied.
The claim of entitlement to a compensable evaluation for a
residual scar over the plantar surface of the left foot is
denied.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.